ACA International, the association of credit and collection professionals, filed a lawsuit on Monday in the United States Court of Appeals for the D.C. Circuit seeking judicial review of the Federal Communications Commission’s declaratory ruling and order adopted June 18 on the Telephone Consumer Protection Act.

The official ruling was released last Friday.

The FCC’s regulatory action responded to a January 2014 petition filed by ACA International, which asked the FCC to clarify the long-standing uncertainty about the law’s application and enforcement, which has caused legitimate businesses attempting to follow the law to be vulnerable to predatory lawsuits. 

ACA International’s suit seeks judicial review of the FCC’s ruling, and determination whether the FCC exercised its regulatory authority appropriately or if the agency has ignored a controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended.

While ACA International vigorously opposes the abusive telemarketing activities that the TCPA seeks to curtail, the FCC’s ruling goes several steps in the wrong direction and amounts to an attempt to expand its own power and sidestep Congress.

“With its ruling, the FCC has gotten it wrong and has overstepped its bounds,” ACA International chief executive officer Patrick Morris said.

“The FCC’s ruling is at odds with the plain language of the TCPA, the original intent of Congress, and common sense,” Morris continued. “Unfortunately, ACA must now turn to the courts in order to challenge the FCC’s attempt to expand its own power and sidestep Congress.”

When Congress passed the TCPA in 1991, lawmakers stated explicitly in that statute that “individuals’ privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.”

ACA International contends Congress thus expressed a “clear intent not to create a regulatory environment so complicated that it lumps legitimate, compliant, law-abiding businesses in with the abusive and intrusive callers the statute was intended to regulate.”

Background of FCC’s previous decision

As ACA International referenced, the FCC back in June adopted a proposal that the regulator indicated is meant to protect consumers against unwanted robocalls and spam texts.

In a package of declaratory rulings, the FCC affirmed consumers’ rights to control the calls they receive. As part of this package, the commission also made clear that telephone companies face no legal barriers to allowing consumers to choose to use robocall-blocking technology.

Officials explained the rulings were informed by thousands of consumer complaints about robocalls the FCC receives each month. Complaints related to unwanted calls are the largest category of complaints received by the commission, numbering more than 215,000 in 2014.

The FCC pointed out the action addressed almost two dozen petitions and other requests that sought clarity on how the commission interprets the TCPA, closing “loopholes” and strengthening consumer protections already on the books.

The TCPA requires prior express consent for non-emergency autodialed, prerecorded, or artificial voice calls to wireless phone numbers, as well as for prerecorded telemarketing calls to residential wireline numbers.

The FCC emphasized the rulings provide much needed clarity for consumers and businesses. Highlights for consumers who use either landline or wireless phones include:

— Green light for ‘do not disturb’ technology: Service providers can offer robocall-blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls.

— Empowering consumers to say ‘stop:’ Consumers have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time.

— Reassigned numbers aren’t loopholes: If a phone number has been reassigned, companies must stop calling the number after one call.

— Third-party consent: A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.

Additional highlights for wireless consumers include:

— Affirming the law’s definition of autodialer: Officials said autodialer is defined in the act as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.

— Text messages as calls: The Commission reaffirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.

— Internet-to-phone text messages: Equipment used to send Internet-to-phone text messages is an autodialer, so the caller must have consumer consent before calling.